Eye Of The Beholder

Confirmation Hearings Sometimes Confirm Only Who's In Power, Not Who Should Be

January 19, 2009

Have you noticed how the sins decried by the party out of power become minor technicalities once that party is in power? And how those in favor with the powerful are pardoned offenses that land lesser men and women in jail?

In honor of our new Democratic president and our Democratic Congressional majority, then, let us single out several recent examples:

* Timothy Geithner, President-elect Barack Obama's choice to oversee the Internal Revenue Service as Treasury secretary, initially tried to pass off his failure to pay more than $34,000 in payroll taxes during a stint at the International Monetary Fund as an honest mistake born of ignorance. (Warning, folks: Don't try this excuse yourselves with the IRS.) But it turns out that his former employer took pains to instruct all American employees that they were indeed required to pay these taxes. And that, even after being caught by the IRS, Geithner opted not to pay two years' worth of those taxes because the statute of limitations on his responsibility had passed. (He later changed his mind under pressure from the Obama transition team.) Oh, and for what it's worth, he employed a domestic servant whose work permit had expired for several months?

Congressional Democrats, who nixed the 2001 nomination of Republican Linda Chavez to a Bush administration post for what were thought to be similar transgressions, didn't seem too concerned. But when Rep. Charles Rangel, the man who chairs the House committee responsible for writing our tax laws, evades taxes on $75,000 worth of rental income with the lame excuse that his wife ran the family finances, why should we be surprised?

* Eric Holder, Obama's nominee for attorney general, got lots of praise from his Senate questioners last week for agreeing that waterboarding of foreign terrorist suspects is torture. Too bad he hasn't shown similar respect for all of the constitutional rights of U.S. citizens, especially those who work for private enterprise.

During his stint as a deputy attorney general in the Clinton administration, he wrote the infamous "Holder Memorandum" allowing federal prosecutors to coerce corporations under federal investigation to deprive their employees of their right to counsel and to confidential communication with that counsel. Corporations that refused to demand that their employees waive these rights in the investigation could themselves be charged with a crime. Joining with employees in a defense was cited as evidence that a corporation was not cooperating with the investigation.

This policy, quickly adopted by the Internal Revenue Service, the Securities Exchange Commission and the Environmental Protection Agency, among others, led to employers forcing their workers, on threat of termination, to give statements that compromised their Fifth Amendment right against self-incrimination and their Sixth Amendment right to counsel. Subsequent administrations continued this coercion against civil liberties, despite criticism from legal advocates across the political spectrum.

Fortunately, a federal appeals court struck down the worst of the practice a couple of years ago by throwing out charges against a group of employees whose company had been forced by the legacy of the Holder Memo to stop paying their legal fees.

The next attorney general's judgment about torture does matter, and it's not surprising that it has gotten most of the attention - along with a Clinton pardon scandal - in Holder's confirmation hearings.

But the Judiciary Committee, and the Senate at large, should press beyond those headlines and pin him down on whether his Justice Department would abandon the culture of coercion he helped create.